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determined as unjust or the rescission of injunction occurs or a
rescission of injunction is decided upon objection.
(2) The action for damages resulting from unjust preliminary
injunction shall be filed in the same court where the main case is
being examined.
(3) The right to file the action is subject to lapse of time of one
year following the finalization of the decision or the rescission of
the injunction.”
First condition to file a legal action to recover the damages resulting
from unjust preliminary injunction is that the preliminary injunction
decision must have been executed. In other words, the claimant must have
been wrongfully restrained and adversely affected as a result of enjoining
enforcement.
Secondly, the injunction must have been proven to be an unjust and
erroneous decision. In case the main lawsuit is rejected and the judgement
is given in disfavour of the party requesting preliminary injunction, the
interim decision for the preliminary injunction shall be accepted as
unjustly granted. Accordingly, the finalization of the decision regarding
main lawsuit should be waited in order to claim the damages resulting from
unjust preliminary injunction. Besides, the party requesting preliminary
injunction is obliged to file the main lawsuit within 10 days - 2 weeks
according to New CPC - following the promulgation of preliminary
injunction decision. Thus, in case the main lawsuit is not filed within this
period of time, the rescission of preliminary injunction shall occur and the
preliminary injunction shall be deemed as unjust and granted wrongfully
hence the entitlement is gained for the action to claim restitution or
recover damages resulting from unjust preliminary injunction decision.
The word “unjust” is defined in New CPC. Accordingly, a preliminary
injunction shall be deemed as unjust in case the preliminary injunction
is determined to be as unjust at the time of motion or the rescission of
injunction occurs or a rescission of injunction is decided upon objection.
Some landmark decisions of High Court of Appeals are presented
below:
The lawsuit is filed regarding claim of damages resulting from
unjust preliminary injunction. The fact that the preliminary